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<div class="fes2-title-45 blue" style="margin: 0px; padding: 0px; border: 0px none; outline: 0px none; color: rgb(0, 159, 226); text-align: justify;"><span style="font-size:24px"><strong>MEDIATION ACT 2012</strong></span></div> <p>An Act to promote and encourage mediation as a method of alternative dispute resolution by providing for the process of mediation, thereby facilitating the parties in disputes to settle disputes in a fair, speedy and cost-effective manner and to provide for related matters.<br /> ENACTED by the Parliament of Malaysia as follows:</p>
<h3><em><strong>Part I &ndash; Preliminary</strong></em></h3>
<h4><em><strong>1. Short Title and Commencement</strong></em></h4> <ol> <li>This Act may be cited as the Mediation Act 2012.</li> <li>This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette.</li> </ol>
<h4><em><strong>2. Non-application</strong></em></h4> <ol> <li>This Act shall not apply to&mdash; <ol> <li>any dispute regarding matters specified in the <a href="http://hex.192.168.1.66.xip.io/wp-content/uploads/2014/01/Mediation-Schedule-para-2a.pdf">Schedule</a>;</li> <li>any mediation conducted by a judge, magistrate or officer of the court pursuant to any civil action that has been filed in court; and</li> <li>any mediation conducted by the Legal Aid Department.</li> </ol> </li> </ol>
<h4><em><strong>3. Interpretation</strong></em></h4> <p>In this Act, unless the context otherwise requires&mdash;</p> <p><strong>&ldquo;non-party&rdquo;</strong> means a person who participates in a mediation, other than a party or mediator, and includes counsels of each party, experts in the subject matter of a dispute and witnesses;<br /> <strong>&ldquo;institution&rdquo;</strong> means a body or organisation that provides mediation services;<br /> <strong>&ldquo;mediation communication&rdquo;</strong> means an oral or written statement made&mdash;</p> <ol> <li>during a mediation;</li> <li>in relation to a mediation; or</li> <li>for the purposes of considering, conducting, participating in, commencing, continuing, reconvening or concluding a mediation or retaining a mediator;</li> </ol> <p><strong>&ldquo;Minister&rdquo;</strong> means the Minister charged with the responsibility for legal affairs;<br /> <strong>&ldquo;mediator&rdquo;</strong> means a mediator appointed by the parties under section 7;<br /> <strong>&ldquo;mediation&rdquo;</strong> means a voluntary process in which a mediator facilitates communication and negotiation between parties to assist the parties in reaching an agreement regarding a dispute;<br /> <strong>&ldquo;mediation agreement&rdquo;</strong> means the agreement referred to in section 6;<br /> <strong>&ldquo;settlement agreement&rdquo;</strong> means the agreement referred to in section 13;<br /> <strong>&ldquo;party&rdquo;</strong> means a party to a mediation agreement and includes the Federal Government and a State Government;<br /> <strong>&ldquo;proceedings&rdquo;</strong> means any proceedings of a civil nature and includes an application at any stage of proceedings.</p>
<h4><em><strong>4. Mediation does not Prevent Court Action, Arbitration , etc.</strong></em></h4> <ol> <li>Subject to section 2, any person may, before commencing any civil action in court or arbitration, initiate mediation.</li> <li>A mediation under this Act shall not prevent the commencement of any civil action in court or arbitration nor shall it act as a stay of, or extension of any proceedings, if the proceedings have been commenced.</li> </ol>
<h3><em><strong>Part II &ndash; Commencement of Mediation</strong></em></h3>
<h4><em><strong>5. Commencement of Mediation</strong></em></h4> <ol> <li>A person may initiate mediation by sending to the person with whom he has a dispute, a written invitation regarding the mediation.</li> <li>An invitation regarding a mediation under subsection (1) shall be deemed to have been rejected if the person initiating the mediation does not receive a reply from the person with whom he has a dispute, within fourteen days from the date he sends the person the written invitation or within such other period of time specified in the written invitation.</li> <li>A mediation shall be deemed to have been commenced upon the person initiating the mediation receiving the acceptance of the written invitation from the person with whom he has a dispute under subsection (3).</li> <li>Upon receipt of a written invitation sent by the person initiating the mediation under subsection (1), the person with whom he has a dispute may, in writing, accept the written invitation.</li> <li>The written invitation referred to in subsection (1) shall briefly specify the matters in dispute.</li> </ol>
<h4><em><strong>6. Mediation Agreement</strong></em></h4> <ol> <li>Upon the commencement of a mediation as specified under subsection 5(4), the parties shall enter into a mediation agreement.</li> <li>A mediation agreement shall contain an agreement by the parties to submit to mediation disputes which have arisen or which may arise between them, the appointment of a mediator, the costs to be borne by the parties and other matters the parties deem appropriate.</li> <li>A mediation agreement shall be in writing and signed by the parties.</li> </ol>
<h3><em><strong>Part III &ndash; Mediator</strong></em></h3>
<h4><em><strong>7. Appointment of Mediator</strong></em></h4> <ol> <li>The parties shall appoint a mediator to assist them in the mediation.</li> <li>A mediator appointed under this Part shall&mdash; <ol> <li>possess the relevant qualifications, special knowledge or experience in mediation through training or formal tertiary education; or</li> <li>satisfy the requirements of an institution in relation to a mediator.</li> </ol> </li> <li>The parties may request for assistance from the institution to appoint a mediator or mediators on their behalf..</li> <li>The appointment of a mediator under subsection (1) shall be made by way of a mediation agreement under section and there shall be one mediator for a mediation unless the parties agree otherwise.</li> <li>If there is more than one mediator, the mediators shall act jointly in the mediation.</li> <li>No appointment of any mediator shall be valid except with the prior written consent of the mediator.</li> <li>A mediator appointed under this Part shall disclose, before accepting the appointment, any known facts that a reasonable person would consider likely to affect his impartiality as mediator, including a financial or personal interest in the outcome of the mediation</li> <li>The mediator may be paid a fee or given any other consideration as agreed between the parties.</li> </ol>
<h4><em><strong>8. Termination of Appointment of Mediator</strong></em></h4> <ol> <li>If a mediator appointed under this Part&mdash; <ol> <li>no longer possesses the relevant qualifications, special knowledge or experience in mediation as required under paragraph 7(2)(a);</li> <li>no longer satisfies the requirement of an institution in relation to a mediator as required under paragraph 7(2)(b);</li> <li>is found to have financial or personal interest in the dispute;</li> <li>is found to have obtained his appointment by way of fraud; or</li> <li>is unable to serve as a mediator for the mediation, the parties may terminate the appointment of the mediator and appoint another mediator for the mediation or request the institution to appoint another mediator.</li> </ol> </li> <li>Notwithstanding subsection (1), the parties may terminate the appointment of a mediator for any reason and shall inform the mediator the reason for the termination.</li> </ol>
<h3><em><strong>Part IV &ndash; Mediation Process</strong></em></h3>
<h4><em><strong>9. Role of Mediator</strong></em></h4> <ol> <li>A mediator shall facilitate a mediation and determine the manner in which the mediation is to be conducted.</li> <li>For the purposes of subsection (1), the mediator shall act independently and impartially.</li> <li>A mediator may assist the parties to reach a satisfactory resolution of the dispute and suggest options for the settlement of the dispute.</li> </ol>
<h4><em><strong>10. Submission of Statements to Mediator</strong></em></h4> <ol> <li>A mediator may request each party to submit a statement setting out the brief facts of the dispute, supplemented by any documents that the party deems appropriate to submit.</li> <li>At any stage of a mediation, a mediator may request any party to submit any additional information or document as the mediator deems appropriate.</li> </ol>
<h4><em><strong>11. Conduct of Mediation</strong></em></h4> <ol> <li>A mediator shall ensure that a mediation is privately conducted and he may meet with the parties together or with each party separately.</li> <li>Notwithstanding subsection (1)&mdash; <ol> <li>a non-party of any party&rsquo;s choice may participate in a mediation to assist the party, subject to the consent of the mediator; and</li> <li>a non-party of a mediator&rsquo;s choice may participate in a mediation to assist the mediator during the mediation, subject to the consent of the parties.</li> </ol> </li> <li>A mediator may end the mediation if, in his opinion, further efforts at mediation would not contribute to a satisfactory resolution of the dispute between the parties.</li> </ol>
<h3><em><strong>Part V &ndash; Conclusion of Mediation</strong></em></h3>
<p>A mediation shall conclude&mdash;</p> <ol> <li>upon the signing of a settlement agreement by the parties under section 13;</li> <li>upon the issuance of a written declaration by the parties to a mediator stating that the mediation is terminated; or</li> <li>upon the issuance of a written declaration by a mediator to the parties stating that further efforts at mediation would not contribute to a satisfactory resolution of the dispute;</li> <li>unless otherwise provided by mediation agreement referred to in section 6&mdash; <ol> <li>upon the issuance of a written declaration by a party to the other party and the mediator stating that the mediation is terminated;</li> <li>upon the withdrawal from a mediation by any party; or</li> <li>upon the death of any party or incapacity of any party.</li> </ol> </li> </ol>
<h4><em><strong>13. Settlement Agreement</strong></em></h4> <ol> <li>Upon the conclusion of a mediation and the reaching of an agreement by the parties regarding a dispute, the parties shall enter into a settlement agreement.</li> <li>The settlement agreement under subsection (1) shall be in writing and signed by the parties.</li> <li>The mediator shall authenticate the settlement agreement and furnish a copy of the agreement to the parties.</li> </ol>
<h4><em><strong>14. Effect of Settlement Agreement</strong></em></h4> <ol> <li>A settlement agreement shall be binding on the parties.</li> <li>If proceedings have been commenced in court, the settlement agreement may be recorded before the court as a consent judgment or judgment of the court.</li> </ol>
<h3><em><strong>Part VI &ndash; Confidentiality and Privilege</strong></em></h3>
<h4><em><strong>15. Confidentiality</strong></em></h4> <ol> <li>No person shall disclose any mediation communication.</li> <li>Notwithstanding subsection (1), mediation communication may be disclosed if&mdash; <ol> <li>the disclosure is made with the consent of the parties;</li> <li>the disclosure is made with the consent of the person who gives the mediation communication;</li> <li>the disclosure is required under this Act or for the purpose of any civil or criminal proceedings under any written law; or</li> <li>the disclosure is required under any other written law for the purposes of implementation or enforcement of a settlement agreement.</li> </ol> </li> </ol>
<h4><em><strong>16. Privilege</strong></em></h4> <ol> <li>Any mediation communication is privileged and is not subject to discovery or be admissible in evidence in any proceedings.</li> <li>Notwithstanding subsection (1), the mediation communication is not privileged if&mdash; <ol> <li>the privilege is expressly waived in writing by the parties, the mediator and the non-party;</li> <li>it is a public document by virtue of the Evidence Act 1950 [Act 56];</li> <li>it is a threat to inflict bodily injury or commit a crime;</li> <li>it is used or intended to be used to plan a crime, attempt to commit or commit a crime, or to conceal a crime or criminal activity or an ongoing crime or ongoing criminal activity;</li> <li>it is sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator; or</li> <li>it is sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a party, non-party, or representative of a party based on their conduct during any mediation session.</li> </ol> </li> </ol>
<h3><em><strong>Part VII &ndash; Miscellaneous</strong></em></h3>
<h4><em><strong>17. Costs</strong></em></h4> <ol> <li>The costs of a mediation shall be borne equally by the parties.</li> <li>Notwithstanding subsection (1), the parties may agree on the amount of costs to be borne by each party.</li> </ol>
<h4><em><strong>18. Power to Amend Schedule</strong></em></h4> <p>The Minister may, by order published in the Gazette, amend the Schedule.</p>
<h4><em><strong>19. Liability of a Mediator</strong></em></h4> <p>A mediator shall not be liable for any act or omission in respect of anything done or omitted to be done in the discharge of his functions as a mediator unless the act or omission is proved to have been fraudulent or involves wilful misconduct.</p>
<h4><em><strong>20. Regulations</strong></em></h4> <p>The Minister may make regulations for the better carrying out of the objects and purposes of this Act.</p>